Professor Derrick Bell
New York University School of Law

My first job after law school back in 1958 was with the Justice Department where I obtained an assignment to the newly formed Civil Rights Division, an upgrade from the Civil Rights Section. There, I met Maceo Hubbard, a long-time member of the Section and one of only two or three black lawyers in the whole Justice Department.[1] Hubbard, a veteran lawyer was, as I learned, wise in the ways of white folks. I often sought his advice and remember him telling me, warning me really, about the perils of writing letters of recommendation for other black people. “When you write,” Maceo said, with great gravity, “you need to keep one thing in mind. You can hurt ‘em, but you can’t help ’em.”

Seeing my puzzled look, Maceo explained. “Son, as a Negro, whatever you say that is positive about another Negro will be discounted as ‘special pleading,’ not objective, trying to help your own whether or not they deserve it. But if you try to be objective and offer a balanced assessment of the person, it will immediately be read as negative and given great weight. And, if they decide not to hire the person you are recommending, as is likely if they already have a Negro who is not threatening, even if not really competent, the word will go out: ‘Even Derrick Bell, had negative things to say about the applicant.'”

Maceo Hubbard’s basic message was that a black person needed to develop a special sensitivity to matters of race, a "second sight" W.E.B. DuBois would call it, that enabled you to see actions, yours and others, from a racially aware perspective. Asked how I could obtain such a perspective, Maceo said simply, “Boy, you learn it by living it.”

Building on Maceo’s sage advice over the years of my career in civil rights, I came to view our victories with a discerning eye. Not every expressed concern about race was a concern about racial injustice. For example, I learned that no matter how much harm blacks were suffering because of racial hostility and discrimination, we could not obtain any meaningful relief until policy makers perceived that the relief blacks sought furthered interests or resolved issues of more primary concern.[2]

I thought of Maceo Hubbard’s teachings when I read the opinions in the two much-awaited decisions addressing affirmative action admissions policies at the University of Michigan’s undergraduate program[3] and its law school[4]. Under its cramped interpretation of the equal protection clause that required any racial classification to undergo “strict scrutiny,” the Court majority ruled Michigan’s undergraduate school’s admission program invalid - Gratz v. Bollinger[5]. It condemned the policy “that automatically grants 20 points, or one-fifth of the points needed to guarantee admission to every single underrepresented minority applicant solely because of race, finding it not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.”[6]

In dissent, Justice Ruth Bader Ginsburg summarized why past and continuing racial bias justifies the school’s use of race in the admissions process. She said the effects of centuries of law-sanctioned inequality remain painfully evident in both our communities and our schools. The system of racial caste, ended only recently, created large racial disparities that endure in unemployment, poverty, and health care. She added that equally credentialed job applicants receive different receptions depending on their race, and irrational prejudice is still encountered in real estate markets and consumer transactions. Justice Ginsburg’s accurate assessment of the racial status of blacks was not able to garner five votes on the current Court.

Then for reasons of difference requiring a legal micrometer to measure, the Court, in a 5-4 decision, approved the law school’s admissions program - Grutter v. Bollinger. Justice Sandra Day O”Connor, usually the implacable foe of affirmative action programs, provided the swing vote. Race, she felt, could be counted as a factor in a “highly individualized, holistic review of each applicant’s file, but is not used in a “mechanical way.”[7] She found that the selection process was based on achieving diversity, accepting the University’s contention that diversity “promotes learning outcomes,” and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” These arguments were bolstered by the amici briefs filed by major corporations and military officials maintaining that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.[8]

Read together, Grutter and Gratz provide a definitive example of the Court’s unwillingness to acknowledge the barriers blacks and other people of color continue to face if such acknowledgment involves a remedy that might disadvantage “innocent” whites. But when the remedy is couched to appear a value to the society in general, it gained Justice O’Connor’s approval.

She was not swayed by Justice Souter’s dissent in the undergraduate case in which he points out that with the exception of granting minority applicants 20 points, each application is viewed holistically as is the case in the law school admissions policy that a majority of the Court approved. Souter notes that nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically disadvantaged or predominantly minority high school. At the provost’s discretion, they may also receive 10 points for being residents of Michigan, 6 points for being residents of an underrepresented Michigan county, and among other matters, 5 for leadership and service.[9]

In the past, Justice O’Connor has frequently manifested her concern for the effect affirmative action plans might have on whites. She worried about “trammel[ing] on the interests of nonminority employees.”[10] She wrote the opinions in two major cases that virtually shut the door on set-aside programs intended to get long-excluded minorities into government construction contracts. In City of Richmond v. J.A. Croson Co.,[11] she found a city council that was majority African-American in a city that was approximately 50% black, constituted a political majority from which the minority needed to be protected – referring here to whites as the minority – which justified heightened judicial scrutiny of the affirmative action plan.[12]

And in Adarand Constructors v. Pena,[13] a 5-4 decision, O’Connor held that “all racial classifications, imposed by whatever federal, state, or local governmental actor must be analyzed by a reviewing court under strict scrutiny.” In another close decision invalidating a collective bargaining agreement calling for the retention of a percentage of minority teachers in the case of lay-offs, Justice O’Connor voted with the majority and in a concurring opinion, suggested that an affirmative action program might be valid, but only if it furthers a legitimate remedial purpose and: “implements that purpose by means that do not impose disproportionate harm on the interests, or unnecessarily trammel the rights, of innocent individuals directly and adversely affected by a plan's racial preference.”[14] Given these concerns, she supported the law school’s diversity-oriented admissions policy, viewing as a benefit and not a burden to non-minorities.

Without the Maceo Hubbard warning, I might be surprised at Justice O’Connor’s anti-affirmative action record. After all, she was the first woman Supreme Court Justice, appointed by President Ronald Reagan to keep his campaign promise to provide gender diversity to the Court. She has written powerfully about the discrimination she experienced as a very successful graduate of the Stanford Law School during a time when as a woman, she was unable to find a job with a corporate law firm.[15]

Justice O’Connor has approved some forms of affirmative action,[16] and has condemned racial oppression, warning that: “We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be.”[17] And yet, she would prefer to allow racially discriminatory policies to remain in place rather than approve remedies she fears will disadvantage whites who have not themselves been shown to intentionally cause that discrimination.

Justice O’Connor is not alone in the seemingly strange posture of an individual who has known discrimination first-hand and yet is opposed to affirmative action remedies. Justice Clarence Thomas, the only black member of the Court and himself one who has benefitted directly from affirmative action polices, is passionately opposed to them.[18] Justice Thomas voted against the minority admissions policies in both Michigan cases. And he wrote a long dissent in the law school case. He opens his opinion dramatically with a short quote from “What the Black Man Wants,” a quite long, extemporaneous speech presented by Frederick Douglass to the Massachusetts Anti-Slavery meeting in January, 1865.[19] There, Douglass told the audience that the colored people simply want justice. Thomas quotes a portion of that speech in which Douglass says:

The American people have always been anxious to know what they shall do with us .... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury."[20]

Justice Thomas follows the quote by stating that: “Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”[21] Reading the speech in its entirety, though, it is clear that Douglass would not agree with Thomas’ hostility to affirmative action programs. Abolitionist Wendell Phillips had spoken earlier, calling for federal legislation to give black men the right to vote, and opposing a policy of gradual emancipation and apprenticeship, including restraints on wages and terms of employment imposed on blacks in occupied Louisiana by Union General Nathaniel P. Banks and endorsed by President Lincoln. Douglass agreed with Phillips that gaining the ballot would enable blacks to protect their rights as citizens.

He joins in condemning General Banks policy as practically reenslaving the negro. In criticizing those who thought that the idea of enfranchising blacks was premature, Douglass admitted that blacks had much to do as they climbed out of the degraded status of slaves; but he talked of what they had done and were determined to do. He urged that this determination not be thwarted by restrictions such as those imposed by General Banks. It was that character of benevolent oversight that Douglass condemned, not the enactment of laws needed to ensure that the freedmen would not be victimized by the hostility of the bigot, or patronized by the well-meaning abolitionist who doubted the black man’s ability when compared to whites.

Frederick Douglass saw clearly 150 years ago what Justice Thomas and so many affirmative action opponents ignore today: the continuing viability of racism. The Court majority, including Justices Thomas and O’Connor, would strike down all racial classifications in the admissions process and would not permit schools to use the diversity and critical mass approaches to maintain some minority presence in their classes. But they give only passing mention and no weight to the barriers of racial discrimination that are at the heart of the justices’ opinions who would have approved both the law school and the undergraduate program.

Justice Thomas, though, misreads Frederick Douglass’ position in a more important regard. While he would strike down as unconstitutional all admissions practices that utilize race either directly or indirectly, Thomas acknowledges the unfairness of legacy admits and standardized test results that play so important role in the admissions process. In his law school dissent, he writes:

There is much to be said for the view that the use of tests and other measures to "predict" academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to "merit." For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called "legacy" preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a "true" meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation's universities.[22]

Thomas finds these policies beyond constitutional reach, and yet these are precisely the kinds of restrictions that Douglass maintained did not let the black person alone, did not let him “stand on his own legs, In short, existing qualifications are means of advantaging privileged applicants in ways more subtle but hardly less confining than the apprenticeship status General Banks imposed on the only recently-freed slaves. Justice Thomas reads Douglass’ words, but he misses that great man’s spirit and his unwavering dedication to uplifting his people. Douglass recognized that the Constitution and the country was born in slavery, but he believed it contained an essence sufficient to make all free. Unlike Justice Thomas, Frederick Douglass, would not construct no exit rationales that rendered all use of race invalid, thereby effectively insulating policies that discriminated as certainly as any Jim Crow law beyond challenge if they did not mention race.

Justice Antonin Scalia, dissenting in the law school case, predicts that the two decisions he derides as a “split double header seem perversely designed to prolong the controversy and the litigation.” Reviewing some of the possible litigation, Scalia says, “I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state provided education is no exception."[23] In addition to further litigation, Ward Connelly who led successful campaigns to ban racial and ethnic preferences in California and Washington State, announced that he and other affirmative action foes would launch a similar campaign in Michigan and other states.[24]

There is little doubt that advocates of affirmative action will rise to the new challenges. In the meantime, there are indications that financial concerns will bar far more minority students from college than will be the case if all minority admissions policies are abandoned. And with government at every level struggling to manage huge deficits, many colleges are suffering deep budget cuts that mean higher tuition and less money available for financial aid. A Century Foundation study estimates that if the nation’s most selective colleges abandoned affirmative action and looked only at grades and test scores, about 5,000 fewer black and Hispanic students would make the cut each year. But next year, officials estimate that because of budget cuts at least 20,000 black and Hispanic students will be shut out of California’s 108 community colleges.[25] One can easily imagine the nationwide attrition figures.

Diversity as a proxy for affirmative action will prove of value to college administrators anxious to maintain the existing heavy reliance on standardized tests and grade point averages rated based on the quality of the high school where they were earned. That, despite their contrary claims, is their real priority. The fact that in its exercise, whatever affirmative action policies they are practicing are placed in continuing jeopardy, is simply an unfortunate risk they are willing to take and minority applicants must be willing to bear. Maceo Hubbard was right. We black people do learn from living, but the learning is not always easy to take.

[1] At least until 1998, the Department of Justice presented a Maceo Hubbard award in memory of an “extraordinary civil servant who spent 40 years with the Department.” The award is given to an individual who has furthered the cause of civil rights through significant innovative accomplishment.”
[2] Derrick Bell, Brown v. Board of Education and the Interest Convergence Dilemma, 93 Harv. L Rev. 518 (1980). For example, Lincoln issued the Emancipation Proclamation after concluding that freeing the slaves would aid rather than detract from the war to preserve the Union. And, while not mentioned in its opinion, there is impressive evidence that the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), was strongly influenced by efforts by the State Department to ease adverse severe criticism of racial violence and discrimination, as well as the need to counter subversive activities on the domestic front. See, Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton, N.J. Princeton Univ. Press, 2000).
[3] Gratz v. Bollinger, 123 S.Ct. 2411, 2427 (2003).
[4] Grutter v. Bollinger, 123 S. Ct. 2325, 2343 (2003).
[5] Gratz v. Bollinger, 123 S. Ct. 2411, 2427 (2003).
[6] Gratz v. Bollinger, 123 S.Ct. 2411, 2427 (2003).
[7] Grutter v. Bollinger, 123 S. Ct. 2325, 2343 (2003).
[8] Aware of the Court’s hostility to affirmative action, and the likelihood that at least one justice might overcome his or her opposition if the program was deemed to promote diversity, Michigan lawyers and their civil rights allies, shifted the focus from remediation for past discrimination to the value of diversity to the schools and to society. In support, they lined up 64 amicus briefs that represent more than 300 organizations, including academics, labor unions, scores of Fortune 500 companies, and nearly 30 retired military and civilian defense officials. The friend of the court briefs all maintained that a racially diverse, well-educated work force is essential to the success of their missions.
[9] 123 S.Ct. 2411.
[10] Sheet Metal Workers, 478 U.S. at 496; see also U.S. v. Paradise, 480 U.S. 149, 199-200 (1987)(5-4 decision) (O’Connor, J., dissenting)(“The District Court had available several alternatives that would have achieved full compliance with the consent decrees without trammeling on the rights of nonminority troopers.”).
[11] City of Richmond v. J.A. Croson, 488 U.S. 469, 494, 495-496 (1989),(6-3 decision, O’Connor, held “the standard of review applied is not dependent on the race of the party burdened or benefited by the classification”.)
[13] Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995)(5-4 decision)(O’Connor, J.)(“all racial classifications, imposed by whatever federal, state, or local governmental actor must be analyzed by a reviewing court under strict scrutiny.”). The decision overturned Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
[14] Wygant v. Jackson Board of Educ., 476 U.S. at 284, 287 (1986).
[15] See, Jerome McCristal Culp, Jr., An Open Letter from One Black Scholar to Justice Ruth Bader Ginsburg: Or, How Not to Become Justice Sandra Day O'Connor, 1 Duke J. Gender L. & Pol'y 21, 31 (1994), (arguing that Justice O'Connor's jurisprudence of race has been dismissive of black people's concerns.)
[16] See, e.g., Johnson v. Santa Clara Transportation Agency, 480 U.S. 616, 647 (1987)(O’Connor, J., concurring), (approving affirmative action under Title VII for women).
[17] Brown v. North Carolina, 479 U.S. 940, 941-42 (1986), (O’Connor concurring).
[18] See, John Calmore, Airing Dirty Laundry: Disputes Among Privileged Blacks– From Clarence Thomas to “The Law School Five”, 46 Howard L.J. 175 (2003).
[19] The Frederick Douglass Papers, 1864-80, pp. 59-69, John Blassingame and Jorh McKivigan, eds. (New Haven, Yale Univ. Press, 1991)
[20] 123 S.Ct. 2325.
[21] Id.
[22] 123 S. Ct. at 2359-60.
[23] 123 S. Ct. 2325.
[24] Peter Schmidt, Affirmative-Action Fight Is Renewed in the States, Chronicle of Higher Education (July 18, 2003), A19
[25] Jamilah Evelyn, The ‘Silent Killer’ of Minority Enrollments, Chronicle of Higher Education (Jun. 20, 2003), A17.

Derrick Bell is a Visiting Professor at the New York University School of Law.

September 5, 2003


JURIST Contributor Derrick Bell is Visiting Professor of Law at New York University School of Law, where he teaches constitutional law. He has received six honorary degrees in the last decade. He has also been honored as the Annual Tobriner Memorial Lecturer, the UC Davis Edward L. Barrett, Jr., Lecturer on Constitutional Law, and has been voted Teacher of the Year by the Society of American Law Teachers.

His legal articles have appeared in such prestigious journals as Harvard Law Review, Yale Law Journal, NYU Review of Law and Social Change, Hastings Law Journal, UCLA Law Review, University of Michigan Law Review, and Howard University Law Journal. He has been published or featured in The New York Times, Essence, USA Today, Time magazine, People, Chronicle of Higher Education, Los Angeles Times, The Nation, the Village Voice, the Houston Chronicle, and the Baltimore Sun, to name a few. He has also appeared on such national television programs as The Charlie Rose Show, ABC World News Tonight, NBC Nightly News, CBS Evening News, and on the cable networks C-SPAN and CNN. He is also the author of seven books, including The New York Times bestseller Faces at the Bottom of the Well.